Super law that aims to make legislation work
29 September 1998
Many employers will have been alarmed by the news that an employment tribunal has awarded £3,500 to a 20-year-old who had been in her job for less than a hour.
The tribunal ruled that the reason given for Lisa Tomlin's dismissal, her pregnancy, broke sex discrimination laws. Her employer argued that he had employed her as a replacement for a pregnant employee who could no longer do the heavy lifting the job required.
He believed that Tomlin, who did not reveal her pregnancy during the course of the interview, would be similarly incapable. By law, she was not obliged to disclose her status, and argued that there had been nothing said at that time about the need to do heavy lifting.
Despite these facts, the likelihood is that it would not have mattered even if Tomlin had disclosed her condition. In most cases the Sex Discrimination Act 1975 prevents employers denying a woman a job on the basis of her pregnancy.
The anxiety of smaller companies over this is understandable. They may face difficulties affording the dual costs of employing a replacement while retaining an employee on maternity leave.
However, sex discrimination laws are there to protect women against the employer who would deny them a job or promotion, or dismiss them on the grounds of pregnancy.
Furthermore, employment tribunals have taken the view that the time when an employee is pregnant or on maternity leave is a part of a longer term employment relationship. Supporters of the law argue that it provides necessary protection, and not just in the field of maternity.
But the law affects men as well as women - a point which should not be forgotten, given that instances of female managers bullying their male subordinates appear to be on the increase. For example, in a recent case which attracted national publicity, Midland Bank trainee Andrew Gilbert successfully argued that his female manager treated him more harshly than she did his female colleagues. One of the points the tribunal noted was the manager's insistence that Gilbert mop the floor.
This case illustrates the need for a level of statutory protection, although it may be seen as unduly protective in some quarters.
It will never be possible to bring about a situation in which both supporters and critics of sex discrimination and maternity laws are happy, but one criticism on which both parties agree is that the complexity of current legislation makes it difficult to apply.
This point is currently being addressed by Equal Opportunities Commission (EOC) proposals to rationalise the legislation.
Its consultation paper, Equality in the 21st Century: a New Approach, contains proposals for a radical overhaul of the UK's sex equality laws.
The main proposal is to replace the sex discrimination and equal pay acts (with their limited set of prohibitions in respect of sex and marriage discrimination) with a single statute based on the principle that equal treatment of men and women is a fundamental human right.
The new super law would incorporate simplified maternity provisions, and would guarantee an individual freedom from discrimination on the (non-exhaustive) grounds of sex, pregnancy, marital or family status, gender reassignment and sexual orientation.
The consultation period has now finished and the EOC is collating responses. This process is expected to be completed by late autumn, at which point the conclusions will be forwarded to the Secretary of State for Education and Employment.
There are also proposals in the Government's Fairness at Work White Paper, in relation to the law on maternity issues.
What is clear is that, although some sections of the community are wary of new legislation, the principle of equality is generally accepted.
Business leaders, who agree that many areas of the law are uncertain, would welcome a new straightforward law which is clear and simple, with which they would know how to comply.
But this view will always conflict with entrepreneurial spirit, which argues that management should be allowed to run a business as it sees fit, without unduly burdensome legislation.